February 14th, 2013

AUSTIN, Feb. 13 — Senator José Rodríguez has filed SB 538 to repeal §21.06 of the Texas Penal Code, which lists “homosexual conduct” as a misdemeanor crime, and SJR 29 to repeal the state’s 2005 marriage amendment that discriminates against gay couples who want to marry.

“The time has come to put Texas in the mainstream of American values. The simple fact is that the government should not stand in the way of people who want to enjoy the legal rights and privileges of marriage that the rest of us enjoy,” Rodríguez said. “As for the Texas Penal Code, it was a ridiculous law to begin with, as noted even by conservative Supreme Court Justice Clarence Thomas.”

Although Justice Thomas dissented from the majority opinion that the Texas law criminalizing homosexuality was unconstitutional, he called the law “silly” and said, “If I were a member of the Texas Legislature, I would vote to repeal it.”

The section of the Texas Penal Code was ruled unconstitutional by the United States Supreme Court in its 2003 decision, Lawrence v. Texas. Although unenforceable and unconstitutional, the state of Texas has not removed §21.06 from the books, and some untrained law enforcement officials have incorrectly applied the law. For example, in El Paso in 2009, two men were kicked out of a restaurant by a security guard who said they were kissing and it was offensive. The men called police and said one of the responding officers told them that they could be arrested.

As for the state’s marriage amendment forbidding recognition of same sex marriage, even when such marriage takes place in a state that recognizes such unions, SB 538 would allow for a vote by the public on whether to overturn the amendment.